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Religious liberty and gay marriage collide as New Mexico photographer loses case

Poll: 85% agree that photographer should have right to say no

Published: Wednesday, July 29 2015 1:33 a.m. MDT

Elaine Huguenin 
 (Courtesy: Alliance Defense Fund) Elaine Huguenin (Courtesy: Alliance Defense Fund)

A commercial photography business owned by opponents of same-sex marriage violated New Mexico's anti-discrimination law by refusing to take pictures of a gay couple's commitment ceremony, the state's highest court ruled unanimously Thursday.

Elaine Huguenin, who owns Elane Photography with her husband and is the business's principal photographer, refused to photograph the ceremony because it violated her religious beliefs.

The court held that "a commercial photography business that offers its services to the public, thereby increasing its visibility to potential clients" is bound by the New Mexico Human Rights Act "and must serve same-sex couples on the same basis that it serves opposite-sex couples."

"Therefore, when Elane Photography refused to photograph a same-sex commitment ceremony," the court concluded, the photographer "violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races."

The court rejected arguments that the anti-discrimination law violated the photographer's right to free speech and the free exercise of religious beliefs.

Elane Photography is represented by the Alliance Defense Fund, a conservative nonprofit group focused on religious liberty. "Government-coerced expression is a feature of dictatorships that has no place in a free country," said senior counsel Jordan Lorence.

"The idea that free people can be 'compelled by law to compromise the very religious beliefs that inspire their lives' as the 'price of citizenship' is a chilling and unprecedented attack on freedom," Lorence said. "Americans are now on notice that the price of doing business is their freedom. We are considering our next steps, including asking the U.S. Supreme Court to right this wrong."

The case represents a new pressure point in the culture war over gay rights, gay marriage and the mainstreaming of gay culture as long-standing traditional religious beliefs come into direct conflict with new secular expectations. Gay and lesbian couples have been flocking to southern New Mexico to take advantage of a decision this week by county clerk Lynn Ellins to issue same-sex marriage licenses Wednesday after he said his review of state law allowed him to do so. By Thursday afternoon, more than 70 licenses had been issued.

The American Civil Liberties Union, which weighed in on the case in favor of the lesbian couple, had argued in amicus briefs that the photographer was not engaged in protected speech but rather commercial activity.

"A commercial business cannot solicit customers from the general public to buy its services as a photographer for hire and then claim that taking those photographs is a form of its own autonomous expressive activity," the ACLU argued on its website.

According to a recent Rasmussen poll, 85 percent of Americans support the right of the photographer to say no.

"Suppose a Christian wedding photographer has deeply held religious beliefs opposing same-sex marriage," the poll question asked. "If asked to work a same-sex wedding ceremony, should that wedding photographer have the right to say no?"

The court "rejected the idea that especially creative and expressive professionals (like photographers) should be exempted under the First Amendment while more mundane and generic services (like cake-baking) should not be," wrote the University of Minnesota Law School's Dale Carpenter after the decision.

Carpenter had co-authored an amicus brief on the case, which argued that the prosecution of the photographer amounted to coerced speech, and thus a First Amendment violation.

"Consider, for instance," the brief argued, "a freelance writer who writes press releases for various groups, including religious groups, but refuses to write a press release for a religious organization or event with which he disagrees. Under the court of appeals' theory, such a refusal would violate the law, being a form of discrimination based on religion, much as Elaine Huguenin's refusal to photograph an event with which she disagreed was treated as a violation of the law."

The court also ruled that the New Mexico Religious Freedom Restoration Act did not apply because the government was not directly coercing the photographer, a narrow interpretation of the NMFRA.

"This might be the right reading of the statute," Carpenter wrote, "but if so it is a rather stingy statutory protection of religious liberty against governmental burdens since government can burden rights by acting on its own or by making its court system and enforcement apparatuses available for others to do in its stead."

Rejecting that argument, Justice Richard Bosson wrote for the court that the business owners "have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different."

"That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us a people," Bosson wrote in an opinion concurring with the court's ruling. "That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship."

The court said a business could declare in its advertising that it opposes same-sex marriage but it has to comply with the anti-discrimination law

Vanessa Wilcock and another woman found another photographer to shoot the ceremony but an anti-discrimination claim was filed with the state Human Rights Commission, which determined that Huguenin's studio violated the law.

Email: eschulzke@desnews.com

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